House Majority Leader Steny Hoyer today hinted that Democrats may use a controversial parliamentary procedure to pass the health care bill, a tactic that House Minority Whip Eric Cantor charged would be an attempt to fool the public.

“We’re going to have a clean up or down vote on the Senate bill, that will be on the rule,” Hoyer, D-Md., said on “Good Morning America” today. “This is not an unusual procedure. We’re going to vote on a rule.”

The controversial procedure would allow House members to vote on health care changes without ever voting directly on the Senate bill. In this case, the House would vote on a “fix it” measure that would make changes to the Senate health care bill and then automatically, in the process, pass the bill without actually having to vote on it.

The procedure has been used 20 times over the last 30 years by both Democrats and Republicans, often on technical or unpopular measures like raising the debt limit, but never on one as big as health care reform

Senate Minority Whip Jon Kyl (R-Ariz.) on Tuesday said litigation could result if Democrats draft a rule that deems the Senate healthcare bill as having been passed. The rule would also cover a package of changes to the Senate bill that House lawmakers would vote on.

Kyl told conservative talk radio host Hugh Hewitt that the challenges would be based upon the substance of the legislation and the process used, one of the strongest statements at this stage of the debate from a GOP lawmaker.

“There will be both challenges to the substance of the legislation and also the procedure by which it was done if they use this deeming procedure,” he said.p

Additionally radio host Mark Levin has said that the Landmark Legal Foundation will file suit if “deem and pass” is used to pass ObamaCare:

Suppose the House uses deem and pass in the way I have suggested, and opponents of health care reform try to challenge the constitutionality of the health care reform act on the grounds that the Senate bill was not passed by both the House and Senate under Article I, section 7. They will get nowhere.

Balkin goes on to make essentially the same argument based on Marshall Field v. Clark that I made yesterday and concludes:

If opponents of health care reform want to find a basis to attack the constitutionality of health care reform, challenging the use of “deem and pass” is a pretty good way to get thrown out of court. Opponents would be able to get a hearing on the merits if they challenged the actual substance of the bill